Discriminatory Donor Policies Substitute Stereotypes for Science

Every day in the United States, 43,200 people—one every two seconds—need life-saving blood transfusions. In that same 24 hours, 18 people will die while waiting for a donor organ, with the gap between donated organs and those on the waitlist growing every year. Our country is in the midst of what could only be described as a critical shortage of the blood, tissue, and organ donations that sustain and improve the lives of patients across our country.

Yet the Department of Health and Human Services’ policies on donor eligibility prevent donation by gay men because of outdated assumptions that are decades out of step with medical science. These policies harm patients who would benefit from the department modernizing these standards, which amount to little more than discriminatory relics of the past. As noted by Rep. Mike Quigley (D-IL), “Equality for the LGBT community is closer than ever, but outdated and discriminatory policies … must evolve to match advancements in science and technology.”

Thirty years ago The New York Times ran an article describing “a matter of urgent public health and scientific importance.” The urgent matter was the appearance of a new disease, then known as gay-related immunodeficiency, or GRID, and now known as the human immunodeficiency virus, or HIV. That same year, several blood transfusion recipients who did not match the pattern for transmitting GRID were diagnosed with the disease, and researchers later began to understand the role that blood transfusion and other transfer of human tissues played in the spread of the disease.

These events culminated in the Department of Health and Human Services developing the first of several policies that would restrict gay men from donating life-saving blood, tissue, and organs. This initial policy on blood donor eligibility—requesting voluntary deferral by “sexually active homosexual and bisexual men with multiple partners”—was the most plain of the donation policies that would evolve over the next several decades in targeting donors for exclusion on the basis of their sexual orientation.

But these deferral policies reveal more than just a problematic reaction to the early stages of the HIV epidemic in the United States. They also offer a glimpse into the persistent discriminatory motivations that underlie current limitations on blood, tissue, and organ donation by men who have sex with men, or MSM. These policies, which have endured despite significant advances in testing, screening, and transmission prevention, are vestiges of antiquated bias and misinformation, and no longer align with the progress made in medical technology and public health policy.

Blood donation

The ban on MSM blood donation is the most well-known of the U.S. donation policies that discriminate against men who have sex with men. This policy, modified from the original voluntary deferral established in the 1980s, has grown to require permanent deferral by any man who has had sex with another male, even once, since 1977. By contrast, non-MSM donors who are also considered to be high risk are often permitted to donate with little or no deferral period at all. A person who has heterosexual sexual contact with a person who has used injection drugs, for example, is only prohibited from donating blood for 12 months.

The lifetime deferral policy for MSM blood donors has been called into question for years because of its lack of a scientific basis and its failure to reflect the current technologies used by blood donation centers across the country. The technological developments of the past decade have made blood testing so effective that the probability of HIV transmission through blood transfusion is only one in 1.5 million—less than half the risk posed in the mid-1990s.

While the Department of Health and Human Services recently proposed a pilot study designed to explore alternative donation deferral policies for men who have sex with men—a move toward evidence-based donor screening practices—the blood donation ban remains in effect. This in turn aggravates an ongoing blood shortage, which could be drastically reduced or even eliminated by lifting the MSM donation ban, potentially saving an additional 650,000 lives each year.

Tissue and tissue product donation

The same arm of the Food and Drug Administration that regulates blood donation—the Center for Biologics Evaluation and Research—also sets eligibility standards for donors of tissue and tissue products. Examples of the types of tissue that the center regulates include bone, skin, heart valves, tendons, and sperm.

The conversation about tissue donation policies—specifically sperm donation—has been reignited over the last month with a slew of bloggers, doctors, and even television shows criticizing the FDA’s policy. But even though the last month has seen increased talk about tissue donor standards, industry guidance put in place by the Center for Biologics Evaluation and Research on tissue donation by gay men and other men who have sex with men has been in place for five years.

The restrictions on tissue donor eligibility for men who have sex with men, however, are less restrictive than those on blood donor eligibility. Rather than a lifetime prohibition on donation, men who have had sex with another man in the preceding five years are ineligible to donate, effectively imposing a five-year abstinence requirement for potential gay donors.

Though less restrictive, tissue donor standards still discriminate against men who have sex with men by limiting their eligibility more tightly than other prospective donors who are considered to be high risk. As with blood donation, for example, a person who has heterosexual sexual contact with an injection drug user is only prohibited from donating blood for 12 months.

Tissue donor eligibility standards propagate the same outdated stigmatizing message about gay men as the blood donation ban, and still without scientifically valid rationale. Furthermore, tissue donation standards applying to sperm donors adversely affect lesbian, gay, bisexual, and transgender families. Some gay women prefer to receive sperm from gay donors, and prohibiting donation for a significant number of these men puts additional barriers in place to creating families, at the cost of the autonomy and the preferences of parents.

Organ donation

The last and probably least well-known discriminatory MSM donation policy relates to organ donor eligibility. Organ donation standards are set by a different branch of the Department of Health and Human Services than blood and tissue policies—the Health Resources Services Administration, which sets criteria for donors of vascularized human organ transplants, including the kidney, liver, heart, lungs, and pancreas.

Organ donor eligibility standards represent the current best balance, though not ideal, between maintaining a safe supply of donor organs while treating men who have sex with men fairly when compared with other potential donors. Currently, organ procurement organizations are required to obtain a medical history for potential donors to identify factors associated with increased risk for disease transmission, including HIV transmission. If a potential donor meets criteria set forth in the current Public Health Service guidance, the organ procurement organization must communicate that information to transplant programs receiving organs from the donor. The guidance classifies men who have had sex with another man in the preceding five years as high risk.

A second policy requires that transplant programs obtain informed consent prior to transplantation of an organ when, in that transplant program’s medical judgment, the donor has a recognized increased risk for disease transmission. As a result of these two policies, sexually active MSM organ donors are not subject to any deferral requirement or donation ban, but the transplant programs receiving the organs, and possibly the organ transplant recipient, must be informed of the purported increased risk factors of the donor.

Of course, policies based on the presumption that men who have sex with men pose increased risk miss the mark by failing to recognize the variation in risk between kinds of sexual contact, both for MSM and non-MSM potential donors. And similar to practices in blood donor screening, MSM organ donors are not asked about use of condoms, once again failing to acknowledge the drastically reduced risk of disease transmission associated with safer sex practices.

Unique to the context of organ donation is the treatment of HIV-positivedonors and transplant recipients. Individuals at high risk for HIV, as well as individuals who are HIV positive, can receive organ transplants. But a recent study suggests that approximately 500 HIV-positive people in need of replacement livers and kidneys could receive them each year if organ donations by HIV-positive donors were also permitted. This change could potentially provide transplanted organs to every HIV-positive transplant candidate on the waiting list.

For HIV-positive potential donors, however, legislative roadblocks prevent the donation of potentially life-saving organs. Regulations implementing the National Organ Transplant Act of 1984, passed at the height of antigay rhetoric surrounding HIV/AIDS, require the adoption of standards for preventing the acquisition of organs from individuals known to be infected with HIV. The act thus prohibits the acquisition of organs from HIV-positive donors, while hundreds of HIV-positive people in need of donated organs languish on long transplant waitlists.

The discriminatory roots of this ban are underscored by the fact that HIV transmission policies are significantly more restrictive than policies addressing other infections that can also be transmitted during the transplantation process. Individuals who test positive for Hepatitis C, for example, are permitted to donate organs to patients who also have Hepatitis C.

Donation policies need to be based in science, not in discriminatory bias

Ensuring improved public health and safety will require full use of advances in medical technology, the development of donor screening standards that accurately measure risk equally among all potential donors, and dedication to public policy that progresses beyond outdated biases.

Andrew Cray is a Research Associate for LGBT Progress at the Center for American Progress.